The Ohio Ballot Board has created "out of whole cloth a veil of deceit and bias in their desire to impose their views on Ohio voters," one dissenting judge wrote.
The Ohio Supreme Court sided with the state's GOP-led Ohio Ballot Board Tuesday night, ruling that the words "unborn child" could be used instead of "fetus" in the ballot summary of a referendum that would add reproductive rights to the state constitution.
The decision is the latest setback for the referendum after voters defeated a GOP-supported measure in August that would have required a 60% majority to pass constitutional amendments.
"This should have been simple, but the Ohio ballot board tried to mislead voters yet again," Ohioans United for Reproductive Rights spokesperson Lauren Blauvelt told The Guardian. "Issue 1 is clearly and concisely written to protect Ohioans' right to make our own personal healthcare decisions about contraception, pregnancy, and abortion, free from government interference. The actual amendment language communicates that right clearly and without distortion."
"Anti-abortion extremists will continue to lie and cheat in their attempt to defeat us in November—but Ohioans won’t be deceived."
The amendment, which Ohioans will vote on November 7, would guarantee that "every individual has a right to make and carry out one's own reproductive decisions, including but not limited to decisions on: 1. contraception; 2. fertility treatment; 3. continuing one's own pregnancy; 4. miscarriage care; and 5. abortion."
It allows for restrictions on abortion "after fetal viability"—the point at which a fetus could survive on its own, usually around 24 weeks.
However, it stipulates that "in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient's treating physician it is necessary to protect the pregnant patient's life or health."
Ohioans United for Reproductive Rights wanted to share the actual amendment text on the ballot. However, in an August 24 meeting, the Ohio Ballot Board decided on its own language.
The board-proposed summary says the amendment would "prohibit the citizens of the State of Ohio from directly or indirectly burdening, penalizing, or prohibiting abortion before an unborn child is determined to be viable."
It also states that the amendment would "always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability if, in the treating physician's determination, the abortion is necessary to protect the pregnant woman's life or health."
Notably, the board is headed by Ohio Secretary of State Frank LaRose, a Republican and abortion opponent who drafted the new language.
"The entire summary is propaganda," Blauvelt toldThe Associated Press when it was first passed.
In a statement, Ohioans United for Reproductive Health pointed out that the board's summary was actually longer than the amendment text.
The group and five other petitioners sued to block the language four days after the board's meeting, arguing that it aimed "improperly to mislead Ohioans and persuade them to oppose the Amendment."
However, the Ohio Supreme Court Tuesday ruled that the "unborn child" language could stay. It did order one change—to swap "citizens of the State of Ohio" for "the State of Ohio" when explaining who the amendment would restrict.
"We conclude that the term 'citizens of the State' is misleading in that it suggests to the average voter that the proposed amendment would restrict the actions of individual citizens instead of the government," the court ruled, as Cincinnati.com reported.
Not everyone on the court agreed, however. Three Republicans would have made no changes, while the three Democratic members would have tossed out the "unborn child" language as well.
Justice Jennifer Brunner said the board "obfuscated the actual language of the proposed state constitutional amendment by substituting their own language and creating out of whole cloth a veil of deceit and bias in their desire to impose their views on Ohio voters about what they think is the substance of the proposed amendment," as Cincinnati.com reported.
"It's unfortunate that advocacy seems to have infiltrated a process that is meant to be objective and neutral," Justice Michael Donnelly agreed, according to Cincinati.com.
The amendment is a crucial test for abortion rights in Ohio and beyond. Since the U.S. Supreme Court overturned Roe v. Wade, every state ballot initiative enshrining reproductive rights has passed, NBC News observed. Ohio has passed a "heartbeat bill" banning abortion after six weeks, but it is currently blocked by its supreme court. Ohio is also one of the only states in the Midwest region that still permits abortions, The Guardian pointed out.